9911796707
TMI Blog1990 (9) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... y Exemption Scheme, whereas the term "Imprest Licence" will be used where import is allowed outside the Duty Exemption Scheme. (3) Both Advance and Imprest Licences are intended to supply imported inputs for export production and will bear a suitable export obligation. The value of such licences will be debited to the REP entitlement, if any, admissible to exports made in fulfillment of such obligation." Para 183 of the same policy had this to say in respect of import facilities available to Export Houses. The Export Houses were to be granted facilities of six types referred to in the said paragraph and shortly stated these were :- Import replenishment (REP) licences eligible to them as "Registered Exporters; Import replenishment (REP) licences transferred to them by others; Import of items placed on Open General Licence; Additional licences as provided; REP licences issued to Export Houses on their own exports (v) to be valid for import of raw materials, components, consumables and spares (excluding items covered by Appendix 5) as were open to Actual Users under Open General Licence, without debit to the value of such REP Licences... Imprest licence to the ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est licences could not be subject to the Import Policy 1983-84. The restriction relied upon by respondents, resting as it did upon Para 255(3) of the Import Policy 1983-84 could not apply to imports made under imprest licences. The respondents contend the contrary pleading that para 255(3) prevents imports contrary to the policy prevailing at the date of imports irrespective of what the position was in the preceding years or when the endorsement was made. Mr. Rege representing respondents relies upon the Supreme Court's decision in M/s. D. Navinchandra & Co. v. Union of India -AIR 1987 S.C. 1794; 1987 (29) E.L.T. 492 (SC). The present Chief Justice of India speaking for the Beach referred in D). Navinchandra's case to the earlier decisions of the Court and had this to say :- "It must be emphasised that in the case of Raj Prakash, (AIR 1986 SC 1021) (supra), this position has been explained by saying that only such items could be imported by diamond exporters under the Additional Licences granted to them as could have "been imported under the Import Policy of 1978-79, the period during which the diamond exporters had applied for Export House Certificates and had been wrongly refuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the opinion that this Court did not say that canalisation could be ignored. That was not the issue. High Public policy, it must be emphasised, is involved in the scheme of canalisation. This purpose of canalisation was examined by this Court in Daruka and Co. v. Union of India, (1974) 1 SCR 570 (AIR 1973 SC2711)....If the Government decided an economic policy that import or export should be by a selected channel or through selected agencies the Court would proceed on the assumption that the decision was in the interest of the general public unless the contrary was shown.....When this Court observed that the fact whether items were sought to be imported by diamond merchants were canalised, would not be an inpediment to the import directly by them, the Court meant to say that this could be imported directly by them through the canalisation organisation..." Mr. Rege submits that these observations apply fully to the licences figuring in the instant cases. Aluminum alloy-coated steel sheets were in the OGL list in the Import Policies for 1981-82 and 1982-83. The endorsements made in the licences of the petitioners will have to be read as subject to the policy prevailing at the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cover the case of imprest licences. Mr. Rege disputes this by pointing to the endorsement which in terms describes the document as being a 'replenishment licence'. But the replenishment is that accruing through an imprest licence. For that reason when the petition licences use the words 'replenishment licences' the same have not to be read literally. They have to be read as 'a replenishment licence accruing through an imprest licence'. So far as an imprest licence is concerned Mr. Vahanvati and Mr. Mehta for the petitioners rely upon the case of M/s. Hindustan Transmission Pvt. Ltd. decided at an administrative level by the Customs Authorities. Mr. Rege contends that no cognizance can be taken of an administrative order and that they are not binding upon judicial forums. In a general sense learned Counsel is right. But the question here is of an order having persuasive value, and if it has that effect, whether or not passed in a judicial or administrative capacity, it will be taken into consideration. Whether it should be accepted or not, is a different question altogether. Therefore I will now turn to the administrative order relied upon by the petitioners. The importers there had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the import of the goods and the fulfilment of the export obligation would obviously require the period in excess of three months and, therefore, the new policy is bound to be introduced before the obligations are carried out by the petitioners. In my judgment, the reference to the policy for the period AM 85 is totally extraneous and irrelevant for considering the claim of the petitioners."
In the present case the endorsement was made on the last day of the prevalence of the Import Policy for 1982-83. Therefore, the observations of the learned single Judge will apply with greater force to the facts of the present petitions.
3. To sum up, the decision in D. Navinchandra's case must be read as restricted to Additional licences and not covering the case of importations made under imprest licences. Therefore the importations made by the petitioners were not illegal and the threatened action of the respondents was unwarranted in law. So declaring, I make the rules absolute to that extent, leaving parties to bear their own costs. Bank guarantees/bonds, if furnished, to be kept alive for a period of eight weeks from today and to stand discharged thereafter.
X X X X Extracts X X X X X X X X Extracts X X X X
|
